Kropinyeri v Police - [2005] SASC 385

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KROPINYERI v POLICE
Judgment of The Honourable Justice Duggan
30 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - global penalty of eight months' imprisonment imposed by magistrate who directed that one month of sentence be served pursuant to Criminal Law (Sentencing) Act 1988, s 38(2a) - whether magistrate erred - appeal allowed for limited purpose of suspending entire sentence.
Criminal Law (Sentencing) Act 1988 s 38(2a), referred to.
Jamieson v Police [2004] SASC 335, discussed.

KROPINYERI v POLICE
[2005] SASC 385
Magistrates Appeal

DUGGAN J. The appellant pleaded guilty to two counts of unlawful wounding committed in the course of the same incident which took place on 24 December 2004. She was sentenced to a global penalty of imprisonment for eight months. Pursuant to s 38(2a) of the Criminal Law (Sentencing) Act1988 (“the Act”) the magistrate directed that the appellant serve one month of the sentence. The remainder of seven months’ imprisonment was suspended upon condition that the appellant enter into a bond in the sum of $200.00 to be of good behaviour for the period of seven months following her release from prison. The terms of the bond also required the appellant to be under the supervision of a community corrections officer and obey that officer’s lawful directions as to the attendance of the appellant at drug and alcohol programmes.
The appellant has appealed against sentence. The only ground of appeal argued on the hearing of the appeal was that the magistrate erred in applying s 38(2a) of the Act. It was argued that the entire sentence should have been suspended.
The offences were committed while the appellant was staying with her daughter Delhia Kropinyeri and Delhia’s boyfriend Alwyn Karpany at Mount Gambier. Also residing at the house were Delhia’s two children aged 12 years and 15 months respectively.
At approximately 11.30 pm on Friday 24 December 2004 Delhia and Alwyn left the house to get some milk. They then decided to go to the South Eastern hotel. They returned to the house at approximately 12.10 am.
When the couple returned, an argument ensued between them and the appellant. The appellant had been drinking heavily throughout the day. In the course of the argument the appellant took up a knife and stabbed Alwyn in the abdomen. She also stabbed Delhia in the left side of the stomach.
The victims were conveyed to the Mount Gambier Hospital. Delhia underwent a repair of a perforation in her bowel. She was hospitalised for four days. She then underwent a long recovery period and, at the time of sentencing, continued to suffer from the psychological effects of the attack. Alwyn was treated for the wound to his abdomen which required a stitch.
In the course of her sentencing remarks the magistrate said;
I am required to balance your personal circumstances against the need for general deterrence when imposing sentence. An immediate term of imprisonment is called for here. But for your plea of guilty I would have sentenced you to 12 months imprisonment. In all the circumstances I consider eight months imprisonment is appropriate. Your counsel has urged me to suspend that sentence. I decline to do so. However, pursuant to s 38(2)(a) of the Sentencing Act I direct you serve one month of that sentence and I suspend the remainder of seven months upon condition that you enter into a good behaviour bond in the sum of $200 for the balance of the sentence. It will be a condition of the bond that you be under the supervision of a community corrections officer and obey that officer’s lawful directions as to attending at any drug and alcohol programmes considered appropriate.
It is apparent from the sentencing remarks that the magistrate found sufficient reason to make a suspension order. However, the reasons for making the order are not stated and, in addition, nothing was said by the magistrate as to why it was appropriate to suspend part of the sentence, but leave a short period of one month to be served.
Section 38(2a) provides as follows:
. . . if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order –
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
I was referred to Jamieson v Police [2004] SASC 335. In that case, the appellant was sentenced to imprisonment for 10 months for various offences. The magistrate directed that the appellant serve one month of the sentence and the remaining period of nine months was suspended pursuant to s 38(2a). On appeal White J said:
Although the Magistrate referred, in his sentencing remarks, to a number of matters relating to the appellant’s personal circumstances, he did not give any particular explanation as to the order for suspension. The order is somewhat curious. The Magistrate must have been satisfied that there was “good reason” for suspension of nine months of the 10 month sentence of imprisonment but that there was not “good reason” for suspension of the 10th (or first) month. One might have thought that if there were good reason for suspension of 90 per cent of the sentence of imprisonment which had been imposed, then there would be good reason for the suspension of the whole. Against that, however, I note that s 38(2a) itself contemplates that all but one month of a sentence which is less than one year may be suspended. That indicates that what the Magistrate did is, at the least, permissible as a matter of law. However, I consider that it would be a relatively rare case in which it could be held that there was good reason to suspend 90 per cent, or more, of a sentence, but not the balance. As already noted, the Magistrate has not given any reasons for his having taken that approach in this case.
In my opinion, the Magistrate was correct in considering that there was good reason for suspension of nine months of the sentence. But he was in error, in my opinion, in not finding that there was good reason for suspension of the whole sentence.
Similar considerations arise in the present case. It is not in dispute that it was within the magistrate’s discretion to make a suspension order. The appellant is an Aboriginal woman. She was 50 years of age at the time of the offences. She has some previous convictions, but, apart from a conviction for assaulting a police officer in 1991, none are of significance to the present matter. The psychologist who interviewed her suggested that she would benefit from therapeutic intervention to help her deal with the effects of her dysfunctional upbringing and to moderate her use of alcohol and marijuana which played a role in these offences.
In the absence of any explanation in her sentencing remarks, I assume that these are the considerations which led the magistrate to make an order for suspension. In these circumstances, I am left in the same situation as White J in Jamieson v Police. Although an order for partial suspension can be made under s 38(2a), it does seem that, if there was good reason to suspend the sentence, there appears to be no reason in this case to order a very short period of it to be served.
These considerations justify an order setting aside that part of the magistrate’s order which directed that one month of the sentence be served.
The appeal will be allowed for the limited purpose of ordering that the order of suspension be varied so as to suspend the entire sentence of eight months. The bond will operate from the date on which the appellant agrees to abide by its terms.
In all other respects the orders of the magistrate will remain.